- The Washington Times - Sunday, November 12, 2006


Efforts to curb judges’ independence suffered some Election Day setbacks, but supporters pledged to keep fighting against a judiciary they say has lost touch with America.

The problem, critics say, is that judges too often make laws rather than interpret them. On Tuesday’s ballots, the possible solutions ranged from term limits to prison time. All failed, most by wide margins.

Judges say such efforts threaten their autonomy, and some legal scholars see them as part of an organized campaign to convince voters that judges, like legislators, governors and presidents, are policy-makers who need political oversight.

The frontier of the movement was South Dakota, where voters considered allowing judges to face lawsuits or jail time for their opinions.

“People are not going to allow judges to take over this county,” said Ron Branson, who conceived the South Dakota measure and is promoting it nationwide. “They talk about judicial independence, but they’re getting involved in things they have no power to order.”

Nine out of 10 voters rejected the idea, but Mr. Branson predicted it would take hold in one of several states with active chapters in the “Jail4Judges” campaign.

In Montana, three Republican legislators backed a proposal that would have allowed judges to face recall for any reason. The measure was voted upon, but the results weren’t counted, because judges found fraud and deception in the petition drive. Supporters of the measure said it was just another arbitrary ruling by the courts.

“We’re not off-the-wall people. We’re three leadership people in the Montana House of Representatives,” said state Rep. Ed Butcher, who said they were trying to send a message that jurists “have to be judges, rather than legislators.”

It’s a familiar refrain in these debates. Critics have used the phrase “activist judges” to refer to jurists they say are legislating from the bench.

President Bush has used the term to criticize opinions such as the court-ordered legalization of same-sex “marriage” in Massachusetts.

The critique, however, is not new. Theodore Roosevelt proposed recalling judges who had grown “out of touch with social needs,” and Franklin D. Roosevelt contended the Supreme Court was acting as a policy-making body. “We must take action to save the Constitution from the court,” he said.

But anti-court sentiment is growing. The Justice at Stake Campaign, an effort to keep the judiciary independent, called the 2006 election “the most threatening election yet for fair and impartial courts.”

“I’m increasingly concerned about the current climate of challenge to judicial independence,” retired Supreme Court Justice Sandra Day O’Connor recently told a gathering of state judges. “Unhappiness with judges today is at a very intense level.”

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